ISLAMABAD:The Supreme Court judge Justice Umar Ata Bandial on Monday remarked that strong political parties were necessary for good democracy.
A five-member larger bench of the apex court headed by Chief Justice Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijaz Ul Ahsan and Justice Yahya Afridi heard the Presidential reference seeking an opinion on open balloting for the upcoming Senate elections.
During the course of proceedings, PPP Senator Raza Rabbani argued that the bill to amend Article 226 was pending in the Senate.
He said that the government had also issued ordinance to not to apply Article 226 to the Senate elections. In the 1973 constitution, every election was not secret except for the Prime Minister and the Chief Minister, he said and added that elections for the Prime Minister and the Chief Ministers were again held by open ballot after 18the Amendment.
He said that the constitution was amended to hold elections for the Prime Minister and the Chief Ministers through secret balloting in 1985 elections.
He said that the purpose of holding the election of the Prime Minister through open ballot was to ensure party discipline.
The elections of the Speaker and the Chairman of the Senate were held through secret ballot because these positions were above political affiliation, he added.
He said that there was no provision in the constitution for holding Senate elections through open ballot. The rights of provinces and political parties were two different things, he added.
Raza Rabbani said that the Senate was for the protection of federal units, not for political parties. If the right to secret ballot was taken away, the members of the Assembly would be in trouble at the hands of the deep state, he added.
The Chief Justice remarked that Article 63-A also applied to the election of the Prime Minister and Chief Ministers. The Constitution of Pakistan was similar to the Constitution of Ireland and according to the Irish court, the state owned the cast votes, he added.
Justice Bandial said that individualistic dislikes did not dominate the majority opinion in a democracy.
Addressing Raza Rabbani, Justice Bandial asked how could he say that a system that strengthened individuality should work?
He asked would the system that violated discipline be allowed to run?
Raza Rabbani said the Article 226 was discussed at three different forums as the bill was called for amendment in the assembly.
He said that examples of Indian law were given in the Pakistani Supreme Court. The Constitution and law of India could not determine the limits of Article 226 of the Constitution of Pakistan, he added.
He said that the Office of the Prime Minister and Chief Minister was considered the Leader of the House.
He said that secret elections were a different matter. Votes were cast beyond party policy in Senate elections, therefore, the Constitution provided protection under Article 226, he added.
He said that the Senate was the House of the Federation and it protect federal units. The Senate represented the federation, not the political parties, he added.
He said that the forums of political parties were different as the National Assembly and the provincial assemblies were direct forums for political parties.
He said that the Senate’s concept was radically different. The National Assembly represented the majority of the population while federal units were proportionally represented in the Senate, he added.
Raza Rabbani said that the Senate was the guardian of the rights of federal units. There was no provision in Article 63 (A) for disqualification of a Member of the Assembly in a Senate election, he added.
He said that Hafeez Pirzada’s speech on proportional representation in the Senate was actually related to the National Assembly. He (Hafeez Pirzada) spoke about the representation of political parties in the National Assembly, not of proportional representation in the Senate, he added.
Addressing Raza Rabbani, the Chief Justice said that according to his argument the proportional representation was only about counting votes.
He asked if political parties were divided, how would the seats of the Provincial Assembly be represented in the Senate?
Justice Ijaz asked where the law applies, if party A could get six seats but got two, then where was the proportional representation?
He asked where was the wisdom of the framers of the Constitution about proportional representation?
Raza Rabbani said that this was not a math question, nor was it a matter of A, B or C as it was a matter of Senate and federation.
Justice Bandial said that the Attorney General in his arguments said that the law did not have a complete election code.
He said that democracy strengthened the masses and it spoke about collectivism.
Later, hearing of the case was adjourned till Tuesday while Raza Rabbani would continue his arguments.